Defending the right to say what you believe

By Daniela Ellerbeck, FOR SA Legal Advisor

Religious freedom and expression

Religious freedom is the constitutional right to not only believe internally as you choose, but the right to also externally express it - by telling others about it, and also living your life according to your beliefs.

The underpinning of a vibrant, healthy democracy is that people have freedom to live as they deem fit. To do so, they must have a voice that they are free to use to exchange their beliefs, thoughts, opinions and ideas with each other and to debate these beliefs, thoughts, opinions and ideas with each other in the public realm.  This allows democratic societies to test ideas to determine which are true and/or the best to make them strong.  As soon as this freedom, this voice, becomes limited, democracy suffers, and we are quickly on the road to totalitarianism. Totalitarianism means that your ability to freely weigh beliefs, thoughts, opinions and ideas for yourself is limited, and you are no longer able to question the dominant beliefs, thoughts, opinions and ideas, or allowed to think differently. Any belief, thought, opinion or idea that other powerful voices do not disagree with and/or have a problem with others hearing, is simply limited or not allowed in the public realm.

Religious freedom is closely intertwined with freedom of expression.  The two go hand in hand and are opposite sides of the same coin.  They cannot be separated.  When religious freedom (your ability to live out your beliefs, and to talk about your beliefs, thoughts, opinions and ideas) suffers, freedom of expression suffers too. And vice versa. This is why Freedom of Religion South Africa (FOR SA), as an ideologically neutral and non-partisan legal advocacy organisation, so often gets involved in defending the right of South Africans to freely state their beliefs, thoughts or opinions – whether that be in the form of a proposed law (known as “bills”), or in front of a Chapter 9 institution or a court of law.  We do so because religious freedom is at stake.

South African perspective

In South Africa, we live in a constitutional democracy where the Constitution is the supreme law by which every other law is interpreted and, ultimately, by which every action is judged. Our Constitution guarantees certain fundamental human rights that attach to human beings simply by virtue of them being human. These rights include the right to freedom of conscience, religion, thought, belief and opinion (found in section15 and often simply referred to as “religious freedom”), and the right to freedom of expression  (found in section 16 and which, amongst other things, includes the freedom to receive or impart information or ideas).

So, what does the right to freedom of expression practically mean for you as an individual in South Africa?  It means that you have the right to freely say what you wish, as long as it does not amount to propaganda for war, incitement of imminent violence or hate speech – which is narrowly defined by the Constitution as the advocacy of hatred (based on someone’s race, ethnicity, gender or religion) that constitutes incitement to cause harm.  Constitutionally speaking, anything else is fair game, including offensive or "politically incorrect” speech. The Supreme Court of Appeal (or “SCA”) recently said in Masuku and Another v South African Human Rights Commission obo South African Jewish Board of Deputies, that the “fact that particular expression may be hurtful of people’s feelings, or wounding, distasteful, politically inflammatory or downright offensive, does not exclude it from protection. Public debate is noisy and there are many areas of dispute in our society that can provoke powerful emotions.”  In other words, freedom of expression includes the protection of ideas that offend, shock, hurt or wound.  The Constitution does not grant you the right to not be offended.

The problem is that our Government has passed “lesser laws” (that are subordinate to the Constitution) and which adversely affect our right to freely express our beliefs, thoughts, opinions and ideas, because they limit our right to freedom of expression much more than the Constitution does.

The foremost example of this is the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 (“Equality Act”).  The Act’s definition of “hate speech” differs from that given in the Constitution and has drastically expanded hate speech beyond the Constitution’s narrow and objective definition. Not only does it expand the “prohibited grounds” beyond what is expressly provided for in the Constitution, but it significantly widens the scope of hate speech to include speech which could reasonably be construed to demonstrate a clear intention to (a) be hurtful; (b) be harmful or to incite harm; (c) promote or propagate hatred. The Equality Act therefore prohibits speech that could be subjectively hurtful, prescribing civil (not criminal) remedies - such as having to render a public apology, paying compensation etc.

To make matters worse, other laws have piggy-backed on the Equality Act’s (unconstitutionally) wide definition of hate speech.  This includes the Films and Publications Amendment Act, 2019 (“Amendment Act”), which criminalises the distribution of content, including content distributed on the internet, that is seen as hate speech. It defines hate speech very widely and imprecisely as any speech, gesture, conduct, writing, display or publication which could reasonably be construed as having the intention, amongst other things, to cause emotional, psychological or moral distress to a person.  The penalty for posting content online that the Amendment Act sees as hate speech, is a fine of up to R150 000,00 or up to two (2) years’ imprisonment.

Worse still, is the Prevention and Combatting of Hate Crimes and Hate Speech Bill (“Hate Speech Bill”), that is currently in front of Parliament.  Essentially the Hate Speech Bill takes the Equality Act’s wide definition of hate speech and makes it a criminal act while at the same time extending the number of “prohibited grounds”.  Whereas the Constitution only has four prohibited grounds (race, ethnicity, religion and gender), the Hate Speech Bill has 15 listed categories of hate speech.  Should the Hate Speech Bill be adopted by Parliament and become law, it will essentially make any potentially offensive speech illegal and punishable by a three (3) year jail sentence for a first offence, and 10 years for a second offense. The Bill will also make it a crime to even pass on someone else’s comment – i.e. if you share someone’s offensive comments on Facebook, you can also be criminally prosecuted for hate speech.

The good news is that after much work by FOR SA and the religious community in South Africa, the current draft of the Bill now includes a religious exemption clause. This clause now protects speech about religious tenets, beliefs, teachings, doctrines or writings, to the extent that such speech does not advocate hatred that constitutes incitement to cause harm.  The problem is that the Deputy Minister of Justice has said that the clause will only protect speech from the pulpit, thus it is meaningless protection for individuals.

FOR SA’s main concern about the Bill remains however, namely that it is unconstitutional, because its definition of hate speech is much wider than the Constitution’s.  It effectively criminalises speech which the Constitution sees as free speech and which the Constitution requires the Government to protect, not prosecute.

The nett effect of all the above (subordinate and proposed) laws on South African society, is to make the scope of “hate speech” (i.e. illegal speech) increasingly wide, and conversely, to restrict the scope of freedom of expression more and more. These laws are an ever-tightening noose around the neck of our democracy.

FOR SA has already written many times – see, for example, here, here and here – about cases that show that this noose is not just theoretical, but already a very real and dangerous threat, resulting in people facing the long arm of the law for saying things which the Constitution sees as protected speech.

Why you should continue to support FOR SA

We are living in a climate which is increasingly hostile to views or opinions that differ from the dominant narrative, and where speech is literally policed.  FOR SA stands for freedom – freedom of individual conscience, religion, thought, belief and opinion and the freedom to express those externally – whether through word or deed.  We believe that the Constitution’s narrow definition of hate speech – with its objective, not subjective standard – is what needs to be abided by. To this end, we will continue speaking out and standing up for people when we see their right to freely express their ideas, beliefs and opinions threatened.  And this is why you should strongly consider supporting FOR SA, because in doing so, you are supporting every South Africans’ hard-won rights to freedom.